Using EU Law before National Courts

Using EU Law before National Courts

1. Direct Effect

   • Established in Van Gend en Loos (1963)
     • TEST
       • Sufficiently clear and precise
         • Objective - To a reasonable judge?
         • As long as general principle and substance clear
           • Some scope for interpretation
           • DEFRENNE V SABENA
       • Unconditional Obligation
         • Von Colson (1984)
       • No further act of implementation required
   • TWO TYPES
     • Vertical
       • Individual - v - MS
     • Horizontal
       • Individual v Individual
   • Direct Effect & Directives
     • As further steps are required by MS to implement - assumption was not DE
       • HOWEVER
         • Grad v Fitnanzamt (1970)
           • Directives capable of DE where deadline for implementation passed.
             • VAN DUYN (1974)
               • • VDE ONLY - Must be against state
                   • STATE
                     • Marshall V SW Health Authority - VDE -DE create to prevent MS benefiting from breach
                       • Foster v British Gas - Guidelines
   • Direct Effect & Treaties
     • Both VDE & HDE
       • HDE - Defrenne v Sabena
       • VDE - Van Gend en Loos
   • Where direct effect does not apply : INDIRECT EFFECT
     • Interpretation Principle
       • MS courts are under an obligation to interpret EU law to ensure consistent application
         • Interpret as per the intention
     • VON COLSON (1984)
     • HARZ (1984)
     • Extended - Marleasing (1990)
       • Regardless of when the national law was enacted - must be interpreted AS FAR AS POSSIBLE in line with EU law

2. State Liability

   • Developed to deal with limitations of direct and indirect effect
     • Francovich & Boniface v Italy (1991)
       • 3 conditions
         • Rights given to individuals
         • Rights are identifiable within the wording
         • Causal link - breach & loss
   • State may be liable for loss caused by States failure to implement legislation
     • Now also applies to all Community Law
       • Also added breach must be sufficiently serious
         • Manifestly and gravely disregarded the limits of its discretion
           • Further considerations
             • Whether infringement or damage was intentional or involuntrary
             • Error of law was excusable or inexcusable
             • Position take by a Community Inst. may have contributed
         • British Telecoms (1996)
           • Inadequate implementation
             • Circumstances will need to be considered
               • May be excusable where attempt has been made to implement and where MS thought they had done so correctly.
       • Brasserie & Factortame (1996)
   • Suing state as entity
   • State may also be liable for actions of the judiciary
     • Controversial as the State do not have control or influence over the judiciary
     • Kobler (2003)
       • Court has failed to apply relevant EU Law
         • ECJ confirmed SL would apply but only in exceptional cases where the court has manifestly infringed the applicable law
           • i.e refusal to follow EU law
           • Manifest breach - strict approach
     • Traghetti (2006)
       • Cannot limit the scope of SL with national law
       • Conditions
         • Degree and clarity of rule
         • Infringement was intentional
         • Error - excusable or inexcusable
         • Position taken by community instr
         • Enter text here
   • Reasoning - Allows individuals who suffer loss to be able to recover loss